Foreign agents laws: How a WWII-era U.S. law is taking on new forms domestically and abroad

By Ella Sohn

Ella Sohn is a rising sophomore studying English in the College of Arts & Sciences. 
​
In early March, thousands of demonstrators took to the streets of Tbilisi, the capital city of Georgia, to protest a proposed law on “transparency and foreign influence.” The turmoil lasted two nights, leading to clashes with riot police and the detainment of over 100 protesters. The government said on Mar. 9 that it would withdraw the legislation. Although the protests calmed soon after the announcement, they highlighted a contentious type of legislation that several other countries have successfully implemented over the past decade. [1]​

​The demonstrations came in response to a bill that would require organizations receiving more than 20 percent of their funding from abroad to register as “foreign agents” or incur heavy fines. Protesters denounced the legislation as an attempt to silence nongovernmental organizations and media outlets and erode Georgian democracy. Critics noted the bill’s similarity to a Russian law introduced by Vladimir Putin in 2012 that has been used to suppress dissenting journalists, activists, and public figures. However, the government denied any association with Russia, claiming instead that it modeled the draft legislation after the Federal Agents Registration Act (FARA) in the United States. [2]
 
This is not the first time FARA has surfaced in discussions of other countries’ laws. In 2014, Kyrgyzstan proposed legislation obligating all NGOs involved in political activities to register as “foreign agents.” Ministry of Justice representatives would be able to inspect organizations’ internal operations and check for compliance. [3] In an interview with BBC, President Almazbek Atambayev emphasized that the term “foreign agents” originated in the U.S., calling the draft law “an American idea that came from the West.” [4]
 
In 2017, the Hungarian government under Prime Minister Viktor Orban enacted a law requiring nonprofits that receive more than $29,000 annually from abroad to identify as foreign-funded. International actors, including the American embassy in Budapest, expressed concerns over the law’s impact on civil-society organizations. In response, Hungarian government officials compared it to the U.S. foreign agents law and insisted that its only goals were transparency and accountability. [5] 

In 2021, the president of El Salvador introduced a foreign agents law with language closely mirroring the U.S. version. Following criticism from the U.S. State Department, he tweeted that the bill was “basically the same” as FARA and directed critics to look at the official Department of Justice website. [6]
 
In all cases, the government responded to domestic and international criticism by pointing out the bill’s resemblance with FARA. The rhetorical advantage of doing so is clear; leaders seeking to pass authoritarian laws can accuse the U.S. of judging by a double standard. However, Atambayev was not incorrect in stating that the language of regulating “foreign agents” has existed in the U.S. far longer than in other countries. The recurring references to FARA, most recently in Georgia, warrant an examination of the law’s history, scope, and impact on civil society in the U.S.
 
FARA dates back to World War II. Amidst fears of Nazi influence, Congress passed a bill to track the information of entities who were in the United States for “political propaganda” activities. President Roosevelt signed it into law in 1938. As enacted at the time, FARA required persons who represented foreign principals to register with the Secretary of State and disclose information about their contacts, compensation, and employer. Over the next few decades, amendments to the law shifted its focus from propaganda to broader political activities. 

In 1942, Congress transferred the administrative authority of FARA from the State Department to the Department of Justice. After World War II ended and the pressing concern over Nazi propaganda faded, the DOJ left FARA mostly unenforced. However, a surge in intense lobbying by foreign government representatives in the 1960s prompted Congress to update the law to address nondiplomatic attempts to influence American foreign policy. The amended law targeted a new, “more subtle” type of foreign agent in the form of professional lobbyists and consultants. [7]

FARA has provided adequate grounds for prosecuting unregistered agents who seek to influence American foreign policy, press, and elections. Notable cases include Elliott Broidy, an American lobbyist who admitted to working on behalf of concealed Chinese and Malaysian interests to deport a dissident of the People’s Republic of China. [8] However, FARA has also caused concerns about its reach and practical effect, especially in its enforcement with humanitarian organizations. 

The broadness of FARA’s language creates uncertainty about who is required to register with the DOJ. The U.S. Code defines “foreign principals” as foreign governments, foreign political parties, organizations that mainly operate in another country, and any person residing outside the U.S. These last two provisions open up a significant number of entities to coverage under FARA. Anyone who acts as a representative, servant, or employee of the previous is considered an “agent of a foreign principal,” including those who attempt to influence “any section of the public” on U.S. policy or solicit anything of value with the U.S. [9] Under current definitions, a wildlife conservation organization that accepted funds from the Norwegian government to advance sustainability was required to register for engaging in “political activities.” [10] 
 
The burden of registering has led to concerns that FARA might discourage humanitarian NGOs from operating at their total capacity. Entities registering with the DOJ must provide their address, nationality, nature of their business, and financial statements associated with the foreign principal. The Attorney General then publishes that information in a publicly available database. For many organizations, the process requires extensive record-keeping, paperwork, and negotiation with staff who do not wish to publish sensitive information. Registrants must file updated statements every six months, and noncompliance is punishable by imprisonment of up to five years and fines of up to $250,000. [8] In publicly announcing affiliation with a foreign principal—an almost unavoidable outcome of today’s international institutions—organizations that consider themselves independent also worry about the potential stigma that comes from being perceived as a foreign agent. [11] Facing the administrative, financial, and public consequences of registering, some nonprofits doing beneficial work might decide to limit their scope to avoid falling under FARA’s purview. 

In 2018, a group of nearly 50 NGOs, including Mercy Corps and Relief International, wrote a letter to Congress urging them to clarify language in FARA that includes nonprofits with no connection to politics. The authors insisted that FARA needed an update in order to reflect the interconnected world of humanitarian work. [12] 

The historical and political context of FARA is distinct from that of recent laws in countries such as Russia, Hungary, and El Salvador. However, until the U.S. narrows and clarifies the language of its own law to better target political activity rather than benign NGOs, it is likely that governments will continue to justify anti-democratic offshoots of foreign agent legislation by pointing to the American counterpart.  

[1] Nechepurenko, Ivan and Andrew Higgins. “The Explosive Roots of the Georgia Protests.” The New York Times, March 8, 2023. https://www.nytimes.com/2023/03/08/world/europe/
georgia-protests-russia.html
[2] Nechepurenko, Ivan. “Georgia Protests Quiet Down as Government Pulls Back Russian-Style Law.” March 9, 2023. https://www.nytimes.com/2023/03/09/world/europe/georgia-protests- russia.html
[3] “Kyrgyzstan scraps bill to bring NGOs under tighter control.” Reuters, May 12, 2016. https://www.reuters.com/article/uk-kyrgyzstan-ngo-lawmaking-idAFKCN0Y32I2
[4] “The leader of Kyrgyzstan: no one should talk down to us.” BBC, November 18, 2013. https://www.bbc.com/russian/international/2013/11/131118_kyrgyz_president_interview
[5] “Viktor Orban finds a new target: international NGOs.” The Economist, June 16, 2017. https://www.economist.com/europe/2017/06/16/viktor-orban-finds-a-new-target-international-ngos
[6] @nayibbukele. “Por cierto, la propuesta de LEY DE AGENTES EXTRANJEROS, que enviamos a la @AsambleaSV, es básicamente la misma ley que tienen en Estados Unidos.” Twitter, November 9, 2021. https://twitter.com/nayibbukele/status/1458254648595386372
[7] Straus, Jacob. “Foreign Agents Registration Act (FARA): Background and Issues for Congress.” June 30, 2020. Congressional Research Service, https://sgp.fas.org/crs/misc/R46435. pdf
[8] “Foreign Agents Registration Act.” U.S. Department of Justice. https://www.justice.gov/nsd-fara
[9] 22 U.S.C. §611
[10] “Re: Advisory Opinion Pursuant to 28 C.F.R. § 5.2.” National Security Division, U.S. Department of Justice, March 13, 2020. https://www.justice.gov/nsd-fara/page/file/1287616/download
[11] Robinson, Nick. “Enhancing the Foreign Agents Registration Act of 1938.” International Center for Not-for-profit Law, April 5, 2022. https://www.congress.gov/117/meeting/house/ 114580/witnesses/HHRG-117-JU10-Wstate-RobinsonN-20220405.pdf
[12] “An Open Letter to the Congress concerning Foreign Agent Registration Act.” InterAction, April 23, 2018. https://www.interaction.org/wp-content/uploads/2019/03/interaction_-_open_ letter_to_congress_on_foreign_agent_registration_act_-_4.23.2018_1.pdf

The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.